Citation Nr: 1510624
Decision Date: 03/13/15 Archive Date: 03/24/15
DOCKET NO. 13-04 183 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Seattle, Washington
THE ISSUES
1. Entitlement to service connection for a chronic respiratory/lung disorder, to include shortness of breath.
2. Entitlement to service connection for a throat disorder.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the United States
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
T. L. Douglas, Counsel
INTRODUCTION
The appellant is a Veteran who served on active duty from August 1988 to August 1992, from June 1993 to December 1993, and from June 2006 to December 2006. He served in Southwest Asia from January 1991 to May 1991. He also had additional national guard and military reserve service including during 2005.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision by the Seattle, Washington, Regional Office (RO) of the Department of Veterans Affairs (VA). In November 2014, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record.
The Board notes that the matter on appeal were initially certified as being claims for service connection for a throat disorder, shortness of breath, and a lung disorder. However, during his personal hearing, the Veteran explained that he experiences a chronic sore throat and hoarseness and a chronic respiratory/lung disorder that results in shortness of breath. The issues on appeal have thereby been recharacterized as set forth on the title page of this decision.
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required.
REMAND
In statements and testimony in support of his claims the Veteran assert that he has respiratory and throat problems as a result of an injury during training at Camp Lejeune, South Carolina, on July 26, 2005, involving an obstacle course smoke grenade. He states that the smoke grenade went off within close proximity of his location and that he was unable to escape its noxious fumes. The Veteran says he has experienced problems with shortness of breath, reduced lung function, a dry throat, and hoarseness since that time. In support of his claims he provided a copy of prescribed Albuterol packaging provided to him at Camp Lejeune on July 26, 2005. He alternately argues that these problems were caused by chemical or environmental exposure during active service in Southwest Asia
Records show the Veteran underwent a VA examination in October 2009 and that the examiner found there was no pathology to render a diagnosis for a lung, shortness of breath, and throat disorder. However, in response to an AOJ request for clarification as to the Veteran's history of inhaler use four times per day the examiner provided a diagnosis of reactive airway disease. No opinion as to etiology was provided.
VA's duty to assist the Veteran includes obtaining a thorough and contemporaneous examination where necessary to reach a decision on the claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Generally, reexaminations are required if the evidence indicates that there has been a material change in a disability, or if the current rating may be incorrect. Here, the Board finds the Veteran should be afforded an additional VA examination. Prior to the examination, up-to-date VA treatment records should be obtained.
Accordingly, the case is REMANDED for the following action:
1. The AOJ should associate any relevant unobtained VA treatment records with the claims file. All records obtained should be associated with the claims file.
2. Schedule the Veteran for a VA lung diseases examination. The examiner should be asked to identify/diagnose any lung, respiratory, or throat disorder that exists or has existed during the pendency of the appeal. If no disability exists, such should be stated and explained along with discussion the earlier diagnosis of reactive airway disease.
For each identified lung, respiratory, and/or throat disorder, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) is related to his active service. The Veteran's exposure to the smoke from smoke grenade should be accepted. The examiner must also comment whether the Veteran experiences the signs or symptoms involving the respiratory system due to service in Southwest Asia - an undiagnosed disability of the respiratory system. The examiner should address the relevant evidence of record.
Rationale for the requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, provide an explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or the limits of current medical knowledge with respect to the question.
3. Thereafter, the AOJ should address the issues on appeal. If the benefits sought are not granted to the Veteran's satisfaction, the Veteran should be furnished a Supplemental Statement of the Case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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MICHAEL A. HERMAN
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).